The Supreme Court closed out this session with a metaphorical bang, upending fifty years of court precedent by overturning Roe v. Wade, the case establishing the constitutional right to an abortion.
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In the wake of this seismic decision, we reached out to legal experts to figure out what the Supreme Court might do next, the answer, anything.
“What is terrifying to me is that they took the biggest issue and just did away with it first,” says Meg York, a family law attorney at Vermont Law School’s South Royalton Legal Clinic.
York says that any of the Supreme Court cases that rely on substantive due process, which protects implied fundamental rights like the right to privacy (abortion is considered a privacy right) and the right to marriage, could be up for grabs.
“They’re… saying we don’t care about stare decisis. We don’t care about precedent. We think that we don’t like this and so we’re going to change it,” she says. “And that’s scary because that means so many of these decisions that we’ve come to rely on… they all suddenly feel vulnerable.”
What’s worse, is that Justice Clarence Thomas explicitly called for overturning several of these substantive due process cases in his opinion, including Obergefell v. Hodges, Griswold v. Connecticut, and Lawrence v. Texas.
It’s hard to stress the importance of each of these cases. Obergefell guaranteed the constitutional right to same-sex marriage. Griswold gave us the right to access contraceptives. And Lawrence made it unconstitutional to criminalize sex between people of the same sex.
Interestingly enough, Thomas, who is in an interracial marriage, did not mention Loving v. Virginia, which established the right to interracial marriage in his opinion and is also considered a substantive due process case.
However, that doesn’t mean Loving is safe from Thomas or the conservative majority on the Supreme Court, says Lisa Crooms-Robinson, a constitutional law professor at Howard University School of Law.
“Given the current majority,” says Crooms-Robinson. “I’m not convinced that with the right case, he couldn’t find a majority to support his position that substantive due process has no constitutional legitimacy.”
Stephen Wermiel, a constitutional law professor at the American University Washington College of Law, agrees with Crooms-Robinson that the conservative court could come for these fundamental rights.
“I don’t think it’s going to happen tomorrow,” said Wermiel. “I don’t think it’s necessarily even going to happen next term. But I think it could certainly happen.”
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